B-114909, JUNE 19, 1953, 32 COMP. GEN. 558

B-114909, JUNE 19, 1953, 32 COMP. GEN. 558

RETIREMENT ORDERS - MILITARY, NAVAL, ETC. - CANCELLATION OR REVOCATION BEFORE EFFECTIVE DATE - ACTIVE DUTY PAY AND ALLOWANCES WHILE AN ADMINISTRATIVE ORDER WHICH TRANSFERS A MEMBER OF THE ARMED FORCES FROM THE ACTIVE LIST TO THE PERMANENT RETIRED LIST IS FINAL AND MAY NOT BE CANCELED OR SET ASIDE AFTER THE EFFECTIVE DATE, A MARINE CORPS WARRANT OFFICER WHOSE INITIAL RETIREMENT ORDERS, WHICH PLACED HIM ON THE PERMANENT RETIRED LIST FOR PHYSICAL DISABILITY, WERE CANCELED PRIOR TO THEIR EFFECTIVE DATE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES UNTIL THE EFFECTIVE DATE OF SUBSEQUENTLY ISSUED RETIREMENT ORDERS.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. J. F. ELDER, UNITED STATES MARINE CORPS, JUNE 19, 1953:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1953, AND ENCLOSURES, RECEIVED WITH FIRST ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES STATED, YOU ARE AUTHORIZED TO READJUST THE PAY ACCOUNT OF WARRANT OFFICER DOUSEY E. BAKER, USMC, RETIRED, SO AS TO ALLOW HIM ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JANUARY 1, 1953, TO FEBRUARY 28, 1953.

YOUR LETTER STATES THAT DOUSEY E. BAKER ENLISTED IN THE UNITED STATES MARINE CORPS ON SEPTEMBER 10, 1929, AND THAT ON JANUARY 31, 1947, HE WAS APPOINTED TO THE RANK OF WARRANT OFFICER FOR TEMPORARY SERVICE, PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED, 34 U.S.C. 350. ON AUGUST 26, 1952, HE WAS EXAMINED BY A STATUTORY BOARD OF MEDICAL EXAMINERS AND FOUND PHYSICALLY QUALIFIED FOR ADVANCEMENT TO THE RANK OF COMMISSIONED WARRANT OFFICER, FOR TEMPORARY SERVICE, AND THE FINDINGS OF SAID BOARD WERE APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR ON SEPTEMBER 8, 1952. HOWEVER, AS THE RESULT OF A PHYSICAL EXAMINATION CONDUCTED SUBSEQUENT TO THE LATTER DATE, WARRANT OFFICER BAKER WAS ADMITTED TO THE UNITED STATES NAVAL HOSPITAL, BEAUFORT, SOUTH CAROLINA, WITH DIAGNOSIS LABYRINTHITIS, ACUTE, PLUS RESIDUAL COMPLICATION BERIBERI. IT IS STATED THAT THE RECORD OF THE PROCEEDINGS OF A PHYSICAL EVALUATION BOARD CONVENED ON NOVEMBER 28, 1952, SHOWS THAT HE WAS FOUND TO BE UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF PHYSICAL DISABILITY INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY; THAT SUCH DISABILITY WAS RATED AT 30 PERCENTUM AND THAT IT IS OF A PERMANENT NATURE. ON DECEMBER 9, 1952, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD AS CONCURRED IN BY THE PHYSICAL REVIEW COUNCIL AND DIRECTED THAT WARRANT OFFICER BAKER BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY IN CONFORMITY WITH THE PROVISIONS OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272 (B). THE COMMANDANT OF THE MARINE CORPS, ON DECEMBER 17, 1952, ISSUED THE NECESSARY ORDERS TO WARRANT OFFICER BAKER TRANSFERRING HIM TO THE PERMANENT RETIRED LIST EFFECTIVE JANUARY 1, 1953.

YOUR LETTER FURTHER STATES THAT ON DECEMBER 18, 1952, THE JUDGE ADVOCATE GENERAL OF THE NAVY, IN RESPONSE TO A REQUEST FROM THE COMMANDANT OF THE MARINE CORPS, ADVISED THAT BAKER'S ADVANCEMENT TO THE RANK OF COMMISSIONED WARRANT OFFICER, FOR WHICH HE HAD PREVIOUSLY BEEN CERTIFIED AS PHYSICALLY QUALIFIED, COULD NOT LEGALLY BE ACCOMPLISHED DUE TO HIS PHYSICAL CONDITION. HOWEVER, IN ORDER TO ENABLE BAKER TO HAVE THE OPPORTUNITY OF RETIRING WITH THE PAY AND RANK OF A COMMISSIONED WARRANT OFFICER, TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED, IT WAS SUGGESTED THAT HE BE AUTHORIZED TO APPEAR BEFORE AN EXAMINING BOARD IN REVISION. ACTING ON SUCH RECOMMENDATION, AND IN ORDER TO GIVE PROPER CONSIDERATION TO ANY NEW EVIDENCE THAT MIGHT THEREBY BE PRESENTED IN THE CASE, THE SECRETARY OF THE NAVY, ON DECEMBER 31, 1952, CANCELED HIS PRIOR ACTION OF DECEMBER 9, 1952, AND POSTPONED FURTHER ACTION ON THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD UNTIL COMPLETION OF THE PROCEEDINGS OF THE EXAMINING BOARD IN REVISION. ON THE SAME DATE THE COMMANDANT OF THE MARINE CORPS CANCELED THE RETIREMENT ORDERS HE HAD ISSUED DECEMBER 17, 1952.

THE EXAMINING BOARD IN REVISION, IN A REPORT DATED JANUARY 22, 1953, HELD THAT BAKER WAS NOT PHYSICALLY QUALIFIED FOR ADVANCEMENT TO THE RANK OF COMMISSIONED WARRANT OFFICER AND ON FEBRUARY 24, 1953, THE SECRETARY OF THE NAVY AGAIN APPROVED THE INITIAL PROCEEDINGS AND RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD WHICH HAD CONVENED ON NOVEMBER 28, 1952, DIRECTING THAT BAKER BE PERMANENTLY RETIRED IN THE RANK OF WARRANT OFFICER BY REASON OF PHYSICAL DISABILITY, IN CONFORMITY WITH THE PROVISIONS OF 37 U.S.C. 272 (B), SUPRA. THE COMMANDANT OF THE MARINE CORPS, ON FEBRUARY 27, 1953, ISSUED THE NECESSARY ORDERS TO WARRANT OFFICER BAKER TRANSFERRING HIM TO THE PERMANENT RETIRED LIST, EFFECTIVE MARCH 1, 1953.

UNDER THE UNIFORM RETIREMENT DATE ACT, APPROVED APRIL 23, 1930, 46 STAT. 253, THE EFFECTIVE DATE OF ALL RETIREMENTS AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, IS THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE HAVE BECOME EFFECTIVE. IT WAS HELD IN DECISION OF JUNE 11, 1930, 9 COMP. GEN. 512, TO THE SECRETARY OF THE NAVY, WITH RESPECT TO RETIREMENT BECAUSE OF PHYSICAL DISABILITY OR AFTER 30 YEARS' SERVICE, THAT "THE ACTIVE STATUS" OF NAVAL OFFICERS ON THE ACTIVE LIST QUALIFYING FOR RETIREMENT ON OR AFTER JULY 1, 1930,"IS TO TERMINATE WITH THE LAST DAY OF A MONTH AND THE RETIRED STATUS TO BEGIN WITH THE FIRST DAY OF THE SUCCEEDING MONTH.' SEE ALSO 15 COMP. GEN. 165.

IN DECISION OF JANUARY 16, 1952, 31 COMP. GEN. 296, IT WAS STATED THAT "IF THE OFFICER WAS LEGALLY RETIRED, HIS CHANGE OF STATUS BECAME AN ACCOMPLISHED FACT AND CANNOT BE UNDONE RETROSPECTIVELY, OR SUCH STATUS CHANGED PROSPECTIVELY EXCEPT AS MAY BE AUTHORIZED BY OTHER PROVISIONS OF LAW.' HOWEVER, AS FURTHER INDICATED IN THE SAID DECISION ANY SUCH PRIOR ACTION MAY BE REOPENED ON A SHOWING OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW OR MATHEMATICAL MISCALCULATION.

THERE APPEARS TO BE NO SOUND BASIS FOR APPLICATION OF SAID RULE IN A CASE WHERE, BEFORE THE RETIRED STATUS OF THE INDIVIDUAL CONCERNED HAS BECOME LEGALLY EFFECTIVE, THE INITIAL RETIRING ACTION IS CANCELED OR REVOKED. SUCH A SITUATION THE INDIVIDUAL CONCERNED DOES NOT ACQUIRE ANY RIGHTS OR BECOME ENTITLED TO ANY RETIREMENT BENEFITS UNDER THE REVOKED RETIRING ORDER AND HIS STATUS REMAINS UNDISTURBED. IN VIEW OF THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, SUPRA, IT IS CLEAR THAT WARRANT OFFICER BAKER'S ACTIVE DUTY STATUS CONTINUED IN EFFECT THROUGH DECEMBER 31, 1952, AND HIS TRANSFER TO THE RETIRED LIST, PURSUANT TO THE SECRETARY OF THE NAVY'S APPROVAL ON DECEMBER 9, 1952, OF THE PHYSICAL DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE, WOULD NOT IN ANY EVENT, HAVE BECOME LEGALLY EFFECTIVE UNTIL JANUARY 1, 1953. HENCE, THE CANCELLATION BY THE SECRETARY OF THE NAVY ON DECEMBER 31, 1952 OF HIS PRIOR APPROVAL OF DECEMBER 9, 1952, FOR THE PURPOSE OF CONSIDERING WHATEVER NEW AND ADDITIONAL EVIDENCE MIGHT BE FORTHCOMING IN THE CASE, WITH INSTRUCTIONS THAT FURTHER RETIREMENT ACTION WOULD BE TAKEN UPON COMPLETION OF THE PROCEEDINGS OF THE EXAMINING BOARD IN REVISION MUST BE VIEWED AS HAVING EFFECTIVELY SET ASIDE AND THEREFORE EXTINGUISHED THE VERY BASIS ON WHICH BAKER'S PROSPECTIVE RETIRED STATUS WAS PREDICATED. IN OTHER WORDS, ON JANUARY 1, 1953, THERE WAS NOT THEN IN EFFECT A VALID RETIREMENT DETERMINATION BY THE SECRETARY OF THE NAVY AND HENCE WARRANT OFFICER BAKER DID NOT LEGALLY ACQUIRE A RETIRED STATUS ON THAT DATE. IT IS CONCLUDED, THEREFORE, THAT BAKER'S ACTIVE DUTY STATUS REMAINED IN EFFECT UNTIL MARCH 1, 1953, THE DATE THAT HIS RETIRED STATUS BECAME LEGALLY EFFECTIVE PURSUANT TO THE SECRETARY OF THE NAVY'S APPROVAL, ON FEBRUARY 24, 1953, OF THE PHYSICAL DISABILITY RETIREMENT PROCEEDINGS IN THE CASE.

ACCORDINGLY, IF OTHERWISE CORRECT, WARRANT OFFICER BAKER'S PAY ACCOUNT MAY BE READJUSTED SO AS TO ALLOW HIM ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JANUARY 1, 1953, TO FEBRUARY 28, 1953, INCLUSIVE.